September 21, 2018 Via e-mail Mr. Randy Mosier Chief of the Regulation Division Air and Radiation Administration Department of the Environment 1800 Washington Boulevard, Suite 730 Baltimore, Maryland 21230-1720 [email protected] RE: Public Comments on Proposed Action on Regulation for Incinerator NOx Limits, COMAR 26.11.08 Dear Mr. Mosier: The Environmental Integrity Project (“EIP”) and the Chesapeake Bay Foundation (“CBF”) (collectively, “Commenters”) respectfully submit these comments on the Maryland Department of the Environment’s (“MDE’s”) Notice of Proposed Action for revising its air quality regulations at COMAR 26.11.08 (Control of Incinerators), as published in the Maryland Register on August 17, 2018.1 Commenters are appreciative of the effort that MDE has put into this rulemaking and the relatively transparent nature of the public stakeholder process. However, we do not believe that the proposed regulation lives up to MDE’s statement to the Baltimore Sun, as reported in July of 2017, that MDE would issue a “‘very tough, aggressive’ rule [for the Wheelabrator incinerator in Baltimore] that [will] force the plant to invest in technology to clean up its exhaust.”2 The NOx limits that take effect in 2019 and 2020 for this incinerator, also known as “BRESCO,” are based on optimizing its existing pollution control technology, and, as explained more fully in Section I below, Commenters think that the facility could achieve lower NOx limits than those proposed just by further optimizing the existing system. In addition, neither MDE nor Wheelabrator has 1 45:17 Md. R. 809-814 (Aug. 17, 2018). 2 Dance, Scott, Maryland moving to cut emissions from BRESCO trash incinerator, Baltimore Sun (July 5, 2017), available at http://www.baltimoresun.com/news/maryland/environment/bs-md-bresco-pollution-20170630- story.html. performed a thorough analysis of the potential to install new NOx pollution controls on the BRESCO facility. More importantly, however, the proposed regulation lacks sufficient specificity regarding what is supposed to be the most important piece of the next step toward a stronger NOx limit. Commenters have repeatedly noted to MDE the importance of a meaningful and specific feasibility analysis for additional NOx controls. However, the section of the proposed rule describing the feasibility analysis appears tailored to allow Wheelabrator to exclude the most effective NOx pollution controls in its assessment. In addition, the preamble to the rule lacks any statement about MDE’s intent to use the feasibility analysis as the basis for a separate rulemaking to commence in 2020. MDE staff expressly represented to its air regulatory advisory council, the Air Quality Control Advisory Council (“AQCAC”), that such a statement would be in the preamble. Commenters also believe that MDE must clarify certain matters with respect to the startup and shutdown limits, and we remain concerned, as we have expressed repeatedly, about MDE’s failure to require the use of a continuous emissions monitoring system (“CEMS”) for ammonia at BRESCO. I. Further NOx Reductions are Achievable at BRESCO. The NOx emission limits for the BRESCO incinerator set in the proposed rule represent a step forward. However, the public stakeholder process for this rulemaking, in which Commenters have engaged extensively, has not unearthed evidence that it is infeasible to install more effective pollution controls on this incinerator. In addition, our expert’s review of information submitted by Wheelabrator during the stakeholder process found that the BRESCO incinerator can meet lower pollution limits today just by using its existing NOx control system. While Commenters understand that MDE will likely finalize the NOx limits set forth in the proposed rule, the fact that that Wheelabrator can almost certainly do far better at controlling its emissions means that MDE must set much stronger NOx limits for this plant in the future. This is particularly important because 2017 emissions data (discussed in more detail below) confirms that Wheelabrator is unlikely to voluntarily reduce its NOx emissions in the absence of a legal mandate compelling it to do so. MDE’s proposed rule sets a 150 parts per million dry volume at 7% oxygen (hereinafter “ppm”) limit on a 24-hour average for the facility, which takes effect in 2019, and a 145 ppm limit on a 30-day average, which takes effect in 2020. Commenters recognize that this represents a more aggressive standard when compared with Reasonably Available Control Technology (“RACT”) standards currently in effect or proposed in other states.3 However, we note that New York State has announced that it is considering a 150 ppm limit on a 24-hour basis for its incinerators.4 The Virginia Department of Environmental Quality (“VDEQ”) concluded in September 2017 that Reasonably Available Control Technology (“RACT”) for a Covanta- operated incinerator in Lorton, Virginia requires that facility to meet NOx limits of 110 ppm on a 3Connecticut and New Jersey have 150 ppm RACT limits for similar incinerators and Massachusetts has proposed such a limit. Pennsylvania has submitted a limit of 180 ppm to EPA as RACT. 4 New York State Department of Environmental Conservation letter to stakeholders, March 26, 2018. 2 daily average, 90 ppm on an annual average, and 233 tons per year.5 In addition, all of these limits allow far greater emissions than the NOx limit required for new incinerators in Maryland, which is 45 ppm on a 24-hour basis.6 Commenters believe that, with additional controls, Wheelabrator can greatly reduce its NOx emissions and reduce the health burden of its pollution on Baltimoreans. MDE clearly has the legal authority to require additional reductions at this very large source of NOx emissions and it should exercise this authority to reduce the human health and environmental impacts of ozone levels that exceed federal standards. EPA has stated that “a state has discretion to require beyond-RACT reductions from any source, and has an obligation to demonstrate attainment as expeditiously as practicable. Thus, states may require . NOx reductions that are ‘beyond RACT’ if such reductions are needed . to provide for timely attainment of the ozone NAAQS.” 7 A. Wheelabrator should be required to install the most effective pollution controls available for NOx. Commenters submit the attached report of Dr. Ranajit Sahu, 8 who has reached several salient conclusions after reviewing information that Commenters obtained following AQCAC’s December 2017 meeting, including the report on the optimization study performed in June 2017 by Fuel Tech, Inc.9 and the 2017 1-hour CEMS data from the datasets made available on MDE’s website. 10 Dr. Sahu has concluded that he sees “no technical impediments to the implementation of the [most effective] NOx-reducing technologies, such as SCR (or hybrid SNCR/SCR), in the appropriate locations along the gas paths at each of the [Wheelabrator Baltimore] boilers.”11 Dr. Sahu has reviewed numerous materials relating to the Wheelabrator Baltimore incinerator,12 including the reports for both optimization studies performed at the facility (one in 2016 and one 5 Letter from Thomas J. Faha, Regional Director, VDEQ, to Frank N. Capibianco, Covanta Facility Manager (September 29, 2017), available at https://www.epa.gov/sites/production/files/2017- 10/documents/2017updatecaroline.11cfi_nox_ract.pdf. 6 A 45 ppm NOx limit on a 24-hour average was set forth in the permit for the proposed Energy Answers incinerator in Baltimore City and Frederick/Carroll Renewable Waste-to-Energy Facility in Frederick County. Both facilities received their air quality permits but neither facility was constructed. 7 EPA, Implementation of the 2008 National Ambient Air Quality Standards for Ozone: State Implementation Plan Requirements, 80 Fed. Reg. 12264, 12279 (March 6, 2015). 8 Expert Report on NOx Emissions from the Wheelabrator Baltimore Municipal Waste Incinerator in Baltimore, owned and operated by Wheelabrator Baltimore, L.P. by Dr. Ranajit (Ron) Sahu, Consultant, dated May 10, 2018 (hereinafter “May 2018 Sahu Report”). Attached hereto as Attachment A. 9 Bisnett, M. “NOx Optimization Project Wheelabrator Baltimore Inc.” Fuel Tech Project 459S, June 5-9, 2017 (hereinafter “June 2017 Fuel Tech Study”), p. 5. Technical Support Document p. 427. 10 MDE, Air & Radiation Administration, Research and Special Studies, Wheelabrator Annual CEM Data Reports, at http://mde.maryland.gov/programs/Air/Pages/ARAResearch.aspx. 11 May 2018 Sahu Report, p. 10. 12 Expert Report on NOx Emissions from the Wheelabrator Baltimore Municipal Waste Incinerator in Baltimore City, owned and operated by Wheelabrator Baltimore, L.P. (“Wheelabrator”) By Dr. Ranajit (Ron) Sahu, Consultant, May 5, 2017 (hereinafter “May 2017 Sahu Report”), p. 1., Attachment B to May 9, 2017 comments of CBF. Technical Support Document Appendix B. 3 in 2017), the 1-hour averaged NOx CEMS data collected at the three boilers during 2017,13 and the Wheelabrator NOx RACT PowerPoint presentation made at the January 2017 stakeholder meeting. Thus, any objection to using the most effective NOx pollution controls available at BRESCO appears to be solely financial. This is a particularly troubling position when taken by a company that, according to the Baltimore Sun, has been rewarded approximately $10 million over the past six years for being a renewable, and ostensibly green and environmentally friendly, source of energy in Maryland.14 In the case of hybrid SNCR/SCR, the financial concerns are reduced as this technology is typically much less expensive than SCR. Commenters note that we have no record of Wheelabrator ever providing more than a cursory response to our recommendation that it analyze the feasibility of using hybrid SNCR/SCR15 or Regenerative Selective Catalytic Reduction (“RSCR”), the technology that would have been installed on the proposed Energy Answers incinerator in Baltimore City and was touted in project materials as more cost-effective than SCR while achieving an 80% reduction efficiency. As Dr.